Graham Lancaster of Lancaster Law & Mediation says mediation helps reveal the real picture behind people’s disputes. Photo: Lancaster Law & Mediation.
In the heat of a legal dispute, it can be hard to see whether your claim would hold up in a court of law, but one Wollongong lawyer says many would benefit from a basic reality check.
Reality testing is an integral part of the mediation process for that very reason.
“I’ve seen many people change track after a reality check. It has a sobering effect on people,” Lancaster Law & Mediation director Graham Lancaster says.
“If people are litigating over $20,000, it would never get past a cost test. Similarly, if you need a resolution quickly, but an outcome is going to take six months or more and might be subject to appeals, going to court doesn’t make practical sense.”
Where court processes would cost more than the problem itself, mediation may be the answer.
Mediation is a facilitated negotiation designed to move people away from entrenched positions toward practical outcomes.
Courts can direct parties to attend, but participation is voluntary, and the process encourages people to move beyond past grievances and consider potential future outcomes.
“If you win, what does that look like? If you lose, what does that look like? Between those extremes, is there a middle ground you can live with?” Graham says. “While neither party might be ‘happy’ in the end, unlike court, mediation offers certainty to reach that middle ground.”
Graham, who has decades of experience not only in law but also in negotiation, arbitration and mediation, says the primary role of the mediator is to test assumptions, expose risks, and guide parties in exploring what a court or tribunal might decide.
“If people have an inflated opinion about their chances of success, they can use the mediation as a testing ground,” Graham says. “We introduce best and worst case outcomes, what a judicial officer might think, and the alternatives to a negotiated agreement, so parties can see the real picture.”
Sessions can be joint, involve legal representatives, or be private, depending on participants’ needs. The mediator is usually agreed upon by both sides, often from a short list.
Despite the myriad possible benefits, mediation isn’t always the default option.
Graham says part of the challenge is a persistent belief that courts will always deliver the “right” answer.
“If courts always got it right, we wouldn’t have appeals,” he points out.
Even at the highest levels, multiple judges can disagree, highlighting the inherent uncertainty of litigation.
Still, mediation is not always suitable, particularly where parties are violent or acting in bad faith. But in most matters, it offers a gentler approach to conflict.
Graham likens it to a non-Newtonian fluid: when struck suddenly, it resists, but if you move through it slowly, it flows.
“That’s mediation,” he says. “You’re moving people gently through the resistance of their dispute.”
Even when court action is unavoidable, mediation remains an option to resolve the issues.
Refusing to attempt it can be a red flag, he adds, particularly since legal fees increase as the dispute continues.
Mediation also encourages shared responsibility and can offer additional benefits.
“In mediation, you can negotiate an outcome, take less damage, and in some instances, even preserve a relationship,” he says.
“Costs are shared, outcomes are clearer, and people can move on sooner.”
For more information, visit Lancaster Law & Mediation.
